ENGLAND & WALES Law and Practice Contributed by: Steven Kay KC, Richard Paton-Philip, Kabir Sondhi and Lucy Kinder, 9BR Chambers
2. Bribery and Corruption Elements 2.1 Bribery The Bribery Act 2010 provides a comprehensive set of offences covering various forms of con - duct that fall within the ambit of bribery. The General Bribery Offences Section 1 – offences of bribing another person The Section 1 offence sets out the “active” offence of bribing another person. The Act sets out two cases (or scenarios) in which a person would be guilty of an offence of bribery of anoth - er. • Case 1 – where a person offers, promises, or gives a financial or other advantage to another person, and intends the advantage: (a) to induce a person to perform improperly a relevant function or activity; or (b) to reward a person for the improper per - formance of such a function or activity. • Case 2 – where a person offers, promises, or gives a financial or other advantage to another person, knowing or believing that the acceptance of the advantage would itself constitute the improper performance of a relevant function or activity. In case 1 it does not matter whether the per - son to whom the advantage is offered, prom - ised, or given is the same person who is to per - form, or has performed, the function or activity concerned. In cases 1 and 2 it does not matter whether the advantage is offered, promised, or given by the person directly or through a third party. Section 2 – offences relating to being bribed The Section 2 offence sets out the “passive” offence of being bribed. The Act sets out four
The Bribery Act guidance sets out the govern - ment’s policy behind the Section 7 failure to pre - vent offence and provides some guidance on the offences under Section 1 (bribing another) and Section 6 (bribing a foreign public official) in rela - tion to the vexed issues of legitimate hospitality and promotional activities. The guidance states that it is intended to help commercial organisations to understand pro - cedures they can put in place to prevent brib - ery, but prosecutors will also have regard to the adequacy of those procedures when, for exam - ple, making decisions to charge or to enter into Deferred Prosecution Agreement negotiations (see more further on in this chapter). The Direc - tor of Public Prosecutions and the Director of the Serious Fraud Office have also published their own joint prosecution guidance on Bribery Act offences, including factors for and against the bringing of a prosecution. 1.4 Recent Key Amendments to National Legislation Whilst there have been several important devel - opments in the field of white-collar, financial, and corporate crime in recent years, there have been few amendments to the Bribery Act 2010. The most significant development affecting offences of bribery is likely Section 196 of the Economic Crime and Corporate Transparency Act 2023, which amends the identification principle gov - erning corporate liability for substantive offences of bribery (see further details later in this chap - ter). In 2020 the Law Commission proposed reform of the common law offence of misconduct in public office, with two new statutory offences of corruption in public office and breach of duty in public office. However, these proposals have not yet been acted upon by the legislature.
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